Sharp

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

CHERYL SIBLEY McKINNEY CIVIL ACTION

VERSUS 25-00080-SDD-RLB

RONALD L. SHARP, SR., BRENT BALLARD,

LYNDON HENDLEY, STEVEN FONTENOT,

BRIAN BINKLEY, ERNEST DRAKE III,

CATHEY POSEY, JOHN HENRY,

BLAKE ERDEY, KYLE BRENT MILTON,

in their individual and official capacities, and

the TOWN OF KILLIAN

RULING

This matter is before the Court on the Motion to Dismiss for Failure to State a

Claim1 filed by Defendants, Ronald L. Sharp, Sr. (“Sharp”), Brent Ballard (“Ballard”),

Lyndon Hendley (“Hendley”), Steven Fontenot (“Fontenot”), Brian Binkley (“Binkley”),

Ernest Drake, III (“Drake”), Cathey Posey (“Posey”), John Henry (“Henry”), Blake Erdey

(“Erdey”), Kyle Brenton Milton (“Milton”), and the Town of Killian (“Killian”) (or collectively

“the Defendants”). Plaintiff, Cheryl S. McKinney (“Plaintiff” or “McKinney”) has filed an

opposition.2 After careful consideration of the parties’ arguments and applicable law, the

Court finds that the Defendants’ motion shall be GRANTED in part and DENIED in part.

I. PROCEDURAL BACKGROUND

Plaintiff McKinney filed a Petition for declaratory judgment, damages, and

injunctive relief in Louisiana state court.3 Defendants removed to this Court, invoking

1 Rec. Doc. 11.

2 Rec. Doc. 12.

3 Rec. Doc. 1-2, p. 10.

federal question jurisdiction.4 Defendants thereafter filed their first motion to dismiss.5

McKinney responded by filing an Amended Complaint (“the Complaint”),6 causing the

Court to administratively terminate the Defendants’ first motion to dismiss under Local

Rule 12.7 Defendants subsequently filed the instant motion to dismiss.8

II. FACTS ALLEGED IN THE COMPLAINT

McKinney brings this action pursuant to 42 USC § 1983 alleging violations of the

First and Fourteenth Amendments of the United States Constitution, in addition to claims

arising under the Constitution and laws of Louisiana.

The events giving rise to McKinney’s claims span several years and reveal a

relationship between a resident and town officials that is both fraught and complex.

McKinney is a resident of the Town of Killian.9 She purchased property in Killian

and started construction on a new home in October 2020.10 While in the initial phases of

construction, the only roadway providing public access to her property was partially

blocked by a neighbor’s camper—causing difficulty for contractors trying to deliver

materials.11 After contacting Livingston Parish Code Enforcement and arranging for the

neighbor to be issued a summons, McKinney alleges Sharp (the mayor of Killian)

commanded those officials “to refrain from enforcing code violations” within Killian and,

specifically, “on the road adjacent [McKinney’s] future home.”12 At a subsequent town

meeting, Sharp allegedly assigned code enforcement duties in Killian to Fontenot, the

4 Rec. Doc. 1

5 Rec. Doc. 6.

6 Rec. Doc. 9.

7 Rec. Doc. 10.

8 Rec. Doc. 11.

9 Rec. Doc. 9, ¶ 15.

10 Id.

11 Id. at ¶ 16.

12 Id.

chief of police, whom McKinney alleges has repeatedly failed to fulfill this delegation.13

Among these failures is an incident where, despite promising to do so for over a year,

Fontenot failed to issue a summons to McKinney’s neighbor whose property was laden

with waste and causing sewage and other debris (including a Freon tank) to encroach

onto her property.14

It was also during this time that McKinney started submitting public records

requests on matters including water testing records,15 town expenditures,16 the issuance

of citations by Killian police,17 and alleged attempts by town officials to abandon the road

on which she lives.18 McKinney alleges that most of these requests remain unanswered

because Sharp “ordered the custodian of records,” Posey, “to ignore any request[s] from

[McKinney].”19 As a result of these alleged failures to respond, McKinney filed a petition

for mandamus in state court.20

Beginning in 2022, McKinney consistently attended town meetings and “spoke[] in

opposition to Sharp’s policies and actions,” as well as those of other Killian officials.21

McKinney’s discontent with the Town’s government also led her to create a social media

page entitled “Dissolution of the Town of Killian.”22 In retaliation for these actions,

McKinney alleges that she has been subject to “harassment” from several of the named

Defendants for more than two years.23

13 Id. at ¶ 17.

14 Id. at ¶ 18.

15 Id. at ¶ 21.

16 Id. at ¶ 23.

17 Id. at ¶ 29.

18 Id. at ¶ 25.

19 Id. at ¶ 21.

20 Id. at ¶ 39.

21 Id. at ¶ 34 (located on p. 11).

22 Id. at ¶ 40.

23 Id.

The first of these alleged acts occurred in 2022 and 2023, while McKinney was

employed by a Louisiana state entity.24 She contends that Sharp, Ballard (former

alderman), Henry (a Killian alderman), and Binkley (alderman), tasked Drake (the alleged

municipal attorney and magistrate of Killian) with calling McKinney’s employer to get her

fired.25 The second occurred in February and March 2024, after McKinney was appointed

to a new position in Louisiana government. McKinney alleges that, around this time,

Sharp, Ballard, Fontenot, and Hendley (alderman), arranged a March 4, 2024 meeting

with her supervisor in Baton Rouge to complain about her comments on social media and

town meetings, in addition to her filing the writ of mandamus for public records.26

A third instance of alleged harassment occurred in July 2024 when McKinney was

confronted by Erdey, a Killian employee, about moving her disabled boat that was parked

in front of her neighbor’s camper trailer—which, by then, had been obstructing the

roadway for more than a year.27 Upon McKinney’s failure to do so, Erdey had a tow truck

remove the boat to an impound facility.28 When questioned about why the neighbor’s

similarly parked camper had not been towed, Erdey allegedly represented that “both

parties would receive a summons”—something which never materialized.29

The final event comprising McKinney’s alleged pattern of harassment occurred

between December 31, 2024, and February 3, 2025, in connection with a New Year’s Eve

bonfire on the property adjacent to McKinney’s residence.30 McKinney alleges that,

despite many Killian residents having bonfires that night, a local fire department arrived

24 Id.

25 Id.

26 Id.

27 Id. at ¶ 34 (located on p. 12).

28 Id.

29 Id.

30 Id. at ¶¶ 36-37.

to extinguish the bonfire closest to McKinney’s property.31 McKinney avers that she does

not own the property upon which the bonfire was found.32 That said, when she asked

why another neighbors’ bonfire had not been extinguished, McKinney states the fire chief

informed her that he was instructed by Sharp that “under no circumstance” was she

allowed to have a fire.33 As this unfolded, McKinney alleges Sharp was at an event

“laughing and telling [others] that [McKinney] was going to jail for the new year.”34

McKinney lastly alleges that on February 3, 2025, a warrant was issued for her arrest in

retaliation for the bonfire.

With this background in mind, the Court turns to the motion to dismiss.

III. LAW AND ANALYSIS

A. Rule 12(b)(6) Motion to Dismiss

When deciding a Rule 12(b)(6) motion to dismiss, the “court accepts all well-

pleaded facts as true, viewing them in the light most favorable to the plaintiff.”35 The Court

may consider “the complaint, its proper attachments, documents incorporated into the

complaint by reference, and matters of which a court may take judicial notice.”36 “To

survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state

a claim to relief that is plausible on its face.’”37 In Bell Atlantic Corp. v. Twombly, the

United States Supreme Court set forth the basic criteria necessary for a complaint to

31 Id.

32 Id. at ¶ 36.

33 Id.

34 Id.

35 In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr.

Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).

36 Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (quoting Dorsey v. Portfolio

Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008)).

37 In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

540, 570 (2007)).

survive a Rule 12(b)(6) motion to dismiss.38 “While a complaint attacked by a Rule

12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s

obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels

and conclusions, and a formulaic recitation of the elements of a cause of action will not

do.”39 A complaint is also insufficient if it merely “tenders ‘naked assertion[s]’ devoid of

‘further factual enhancement.’”40 However, “[a] claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.”41 In order to satisfy the plausibility

standard, the plaintiff must show “more than a sheer possibility that a defendant has acted

unlawfully.”42 “Furthermore, while the court must accept well-pleaded facts as true, it will

not ‘strain to find inferences favorable to the plaintiff.’”43 On a motion to dismiss, courts

“are not bound to accept as true a legal conclusion couched as a factual allegation.”44

B. The Court has Subject Matter Jurisdiction over McKinney’s Federal Claims

Before evaluating McKinney’s claims under Rule 12(b)(6), the Court must address

subject matter jurisdiction. Defendants assert that McKinney’s allegations dealing in

federal law are attempts to “couch her Louisiana state law allegations as ambiguous

purported violations of her rights under the First and Fourteenth Amendments.”45 Citing

to Supreme Court case law for the proposition that “even when [a] state action [contains]

38 Bell Atl. Corp. v. Twombly, 550 U.S. at 544 (hereinafter “Twombly”).

39 Id. at 555 (internal citations and brackets omitted).

40 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted) (hereinafter “Iqbal”) (quoting

Twombly, 550 U.S. at 557).

41 Id. (citing Twombly, 550 U.S. at 556).

42 Id.

43 Taha v. William Marsh Rice Univ., No. 11-2060, 2012 WL 1576099, at *2 (S.D. Tex. May 3, 2012) (quoting

Southland Sec. Corp. v. Inspire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004)).

44 Twombly, 550 U.S. at 555 (quoting Papassan v. Allain, 478 U.S. 265, 286 (1986)).

45 Rec. Doc. 11-1, p. 2.

a contested and substantial federal question, the exercise of federal jurisdiction is subject

to a possible veto[,]” Defendants urge the Court to view McKinney’s attempt as suspect.46

In other words, Defendants challenge the Court’s subject matter jurisdiction.

In the Court’s view, this claim is disingenuous since the Defendants removed this

action from the state court, representing in their Notice of Removal that, under 28 U.S.C.

§ 1331, this Court has original jurisdiction over McKinney’s petition to the extent it “alleges

issues governed by federal law.”47 They further represented that, under 28 U.S.C. § 1367,

this Court has supplemental jurisdiction over McKinney’s claim “brought under Louisiana

state law.”48 Nevertheless, subject matter jurisdiction is not something that can be

conferred upon, or stripped from, the Court at a removing Defendants’ election.49

Accordingly, the Court examines jurisdiction sua sponte, even if not raised by either

party.50

Federal courts hold federal-question jurisdiction over civil actions arising under the

Constitution, laws, or treaties of the United States.51 For a federal court to have “arising

under” jurisdiction, the plaintiff’s claims must appear on the face of the complaint.52 This

is commonly referred to as the “well-pleaded complaint” rule.53 On its face, McKinney’s

Complaint asserts causes of action under 42 U.S.C. § 1983 for violation of her First

Amendment rights,54 conspiracy to violate her First Amendment rights,55 and disparate

46 Id. at. 2-3 (citing Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 313-14 (2005)).

47 Rec. Doc. 1, p. 1-2.

48 Id. at 2.

49 United States v. Riojas, 139 F.4th 465, 472 (5th Cir. 2025) (citing Ballew v. Cont’l Airlines, 668 F.3d 777,

786 (5th Cir. 2012).

50 McDonal v. Abbott Labs., 408 F.3d 177, 182 n.5 (5th Cir. 2005).

51 28 U.S.C. § 1331.

52 McKnight v. Dresser, Inc., 676 F.3d 426, 430 (5th Cir. 2012) (citations omitted).

53 Bernhard v. Whitney Nat’l. Bank, 523 F.3d 546, 551 (5th Cir. 2008).

54 Rec. Doc. 9, p. 15-16.

55 Id. at p. 17.

treatment in violation of the Fourteenth Amendment.56 For each of these claims, “federal

law creates [the] private right of action and furnishes the substantive rules of decision.”57

Accordingly, the Court properly exercises federal-question jurisdiction under § 1331.

C. First Amendment Retaliation

i. Applicable Law

The First Amendment prohibits adverse and retaliatory government action against

citizens for engaging in protected speech activities.58 To state a First Amendment

retaliation claim, McKinney must sufficiently allege that (1) she was “engaged in

constitutionally protected activity,” (2) the town officials’ actions caused her “to suffer an

injury that would chill a person of ordinary firmness from continuing to engage in that

activity,” and (3) the town officials’ “adverse actions were substantially motivated against

her exercise of constitutionally protected conduct.”59

ii. Analysis

McKinney presents three instances of protected conduct that form the basis of her

First Amendment retaliation claim. First, McKinney contends that her participation in

numerous town meetings, at which she spoke “in opposition” of Mayor Sharp and other

Killian officials, is protected First Amendment speech.60 Second, she maintains that her

social media page entitled “Dissolution of the Town of Killian,” which was created “to

discuss the pros and cons of dissolving the Town of Killian”, is likewise protected.61

Finally, McKinney pleads that her mandamus action to enforce her public records

56 Id. at p. 18.

57 Mims v. Arrow Financial Services, LLC, 565 U.S. 368, 742 (2012).

58 Colson v. Grohman, 174 F.3d 498, 508 (5th Cir. 1999).

59 Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002).

60 Rec. Doc. 9, ¶ 39.

61 Rec. Doc. 9, ¶¶ 40, 44.

requests, is also protected activity.62 Defendants do not challenge that this speech is

protected under the First Amendment.63 Indeed, the right to criticize government

officials—whether it be at a town meeting or on social media—is unquestionably protected

by the First Amendment.64 Likewise access to the Courts to redress grievances is also

protected speech.65 Accordingly, the first element of McKinney’s retaliation claim is

readily satisfied.

The second element requires the Court to determine whether McKinney has

sufficiently alleged that the Defendants’ actions caused her to suffer an injury that would

chill a person of ordinary firmness from continuing to criticize the actions of Killian

officials.66 In doing so, McKinney must also allege that her own speech was curtailed,

though this curtailment “need not be great in order to be actionable.”67 McKinney relies

on three courses of Defendants’ conduct to meet this standard: (1) the phone calls to her

employer in 2022 and 2023; (2) the March 2024 meeting with her supervisor at which

several Defendants complained about her protected activities; and (3) the enforcement

of laws against McKinney without probable cause, and refusal to enforce those laws

against other citizens similarly situated.68

62 Wilson v. Thompson, 593 F.2d 1375, 1387 (5th Cir. 1979) (“[it] is by now well established that access to

the courts is protected by the First Amendment right to petition for redress of grievances”).

63 Even so, it is well established that the First Amendment was “fashioned to assure unfettered interchange

of ideas for the bringing about of political and social changes desired by the people.” Lane v. Franks, 134

S. Ct. 2369, 2377 (2014) (quoting Roth v. United States, 354 U.S. 476, 484 (1957)).

64 New York Times Co. v. Sullivan, 376 U.S. 254, 269-70 (1964).

65 Note 62, supra.

66 Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002).

67 Id. at 259.

68 Rec. Doc. 9, ¶¶ 41-48.

iii. The 2022 and 2023 Calls

McKinney contends that, in 2022 and 2023, Sharp, Ballard, Henry, and Binkley

tasked Drake “with calling [McKinney’s] employer in an effort to get her fired for exercising

her constitutionally guaranteed rights.”69 McKinney further avers that Sharp and Ballard

personally contacted her employer multiple times in 2023 for this same purpose.70 But

aside from claiming the calls were made during this two-year period, the Complaint

provides no detail as to the substance of the alleged calls, when or how many times they

occurred, or to whom the Defendants allegedly directed their retaliatory remarks. “Naked

assertion[s] devoid of further factual enhancement” that are “merely consistent with a

defendant’s liability” are not sufficient to survive a motion to dismiss.71 Even assuming

all appropriate inferences in favor of McKinney, these allegations are conclusory and lack

the specificity required to state a claim upon which relief can be granted.72

iv. The March 2024 Meeting

McKinney’s allegation that several Defendants arranged a meeting with her

Louisiana state employer for the same purpose is not so flawed. She alleges that on

March 4, 2024, after she started a new role in state government, Sharp, Ballard, Hendley,

and Fontenot “scheduled a meeting with [her] new supervisor,”73 and “travelled to Baton

Rouge” to complain about her: (1) “creation of a social media page,” (2) suing town

officials over public records requests, and (3) “speaking at town meetings about issues of

public concern.”74 As a result, McKinney alleges that her “speech has been chilled” and

69 Id. at ¶ 40.

70 Id.

71 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).

72 Powers v. Northside Indep. Sch. Dist., 951 F.3d 298, 305 (5th Cir. 2020) (noting that conclusory

statements without factual support are insufficient to survive a motion to dismiss).

73 Rec. Doc. 9, ¶ 40.

74 Id.

“she has self-censored due to fear of further retaliation.”75 The Defendants dispute that

these allegations are sufficient to establish an actionable First Amendment injury.

Defendants argue that, although McKinney alleges certain Defendants met with

her supervisor in March 2024, the absence of a resulting adverse employment action is

fatal to her claim of injury.76 McKinney counters that nothing in the law requires her

employer to have taken an adverse action; she contends it is sufficient that the

Defendants’ conduct caused her to curtail her protected speech activities—that is, caused

them to be chilled.77 Lastly, Defendants contend that any allegation of chilled speech

caused by McKinney’s self-censorship is, simply, a “formulaic recitation of the elements

of a cause of action,” and therefore insufficient to survive a motion to dismiss.78

The Defendants’ arguments are unpersuasive. The First Amendment is violated

when a government official retaliates against a citizen for engaging in protected conduct.79

It is also axiomatic that the government cannot act indirectly against a citizen “to produce

a result which [it] could not command directly.”80 To this point, the Fifth Circuit clarified,

in Kinney v. Weaver, “that the government cannot harry the employer of an ordinary

citizen who gave unwelcome testimony, seeking to have the employee fired in

retaliation.”81 While Kinney is somewhat distinguishable in that the plaintiffs, there,

suffered an adverse employment action, it is nevertheless instructive.82 The question

before the Court, here, is whether a government official’s attempt to have a citizen fired

75 Id. at ¶ 46.

76 Rec. Doc. 11-1, p.4.

77 Rec. Doc. 12, p. 10-12.

78 Rec. Doc. 11-1, p. 5.

79 Kinney v. Weaver, 367 F.3d 337, 358 (5th Cir. 2004).

80 Id. at 358.

81 Id. at 369.

82 Id. at 345.

by a third-party employer for their protected activity, though unsuccessful, is sufficient to

chill a person of ordinary firmness from continuing their conduct. The Court concludes

that, under Kinney, the answer is yes.83 It is sufficient to show that a government actor

lent their official title, time, and effort—in essence, the imprimatur of their office—to the

cause of retaliating against a citizen.84 Because McKinney has alleged that Sharp,

Ballard, Hendley, and Fontenot, did precisely this, the Court finds she has pleaded state

conduct that is sufficient to chill a person of ordinary firmness from continuing to engage

in protected activity.85

Despite the Defendants’ argument to the contrary, Colson v. Grohman86 does not

command a different result. It is one thing to subject a citizen to “public criticism, an

investigation (or attempted investigation), and false accusations”—which the Fifth Circuit

has determined are not substantial enough “injuries” to chill a person of ordinary

firmness.87 It is something else altogether to lobby a citizen’s employer to terminate their

employment because they engaged in protected activity. While not binding, this Court

finds persuasive the Sixth Circuit’s determination in Fritz v. Charter Township of

Comstock that “a credible threat to the nature and existence of one’s ongoing employment

is of a similar character to the other recognized forms of adverse actions [under the First

Amendment]—termination, refusal to hire, etc.—even if perpetrated by a third party who

83 See Hansard v. Zamora, No. 23-41, 2024 WL 3682240 at *6 (W.D. Tex. Aug. 5, 2024) (concluding the

same).

84 Bevill v. Fletcher, 26 F.4th 270, 282-83 (5th Cir. 2022) (reading Kinney to proscribe a government official

“exerting their power or influence over a third-party employer to cause the plaintiff to be terminated for

exercising [their] First Amendment rights”).

85 See Fritz v. Charter Tp. of Comstock, 592 F.3d 718, 726 (6th Cir. 2010) (recognizing that “a person of

ordinary firmness would be deterred from engaging in protected conduct, if as a result, a public official

encouraged her employer to terminate the person’s contract or to have her change her behavior”).

86 Colson v. Grohman, 174 F.3d 498, 512 (5th Cir. 1999).

87 Id.

is not the employer.”88 It follows that when a government actor seeks to threaten a

citizen’s economic livelihood because they find their protected conduct disagreeable, the

citizen is made to suffer more than just the concomitant stress that accompanies criticism,

unfounded accusations, and even defending oneself from an investigation. Such conduct

is not too “trivial” or “minor” to constitute an injury under the First Amendment.89

Also unavailing is the Defendants’ suggestion that, because McKinney’s speech

was chilled by way of self-censorship, her allegations are simply a “formulaic recitation of

the elements of a cause of action.”90 In the First Amendment context, “self-censorship

can give rise to a cognizable constitutional injury.”91 Even so, the Defendants mistake

McKinney’s self-censorship to be the sine qua non of her retaliation claim. Retaliation

claims also require that the plaintiff’s own speech have been curtailed in some way.92

McKinney satisfies this requirement and, therefore, the second element of her retaliation

claim, where she alleges that, because of the Defendants’ actions, she backed off from

her criticism of local officials and discussions regarding town dissolution.93

Regarding the third element, Defendants argue that the actions underlying

McKinney’s retaliation claim were not substantially motivated against her constitutionally

protected activity. More specifically, Defendants point to the directive from Nieves v.

Bartlett94 that a plaintiff must establish “but-for” causation between the government actor’s

retaliatory animus and the plaintiffs’ subsequent injury.95 Defendants contend that

88 Fritz, 592 F.3d at 728.

89 Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002).

90 Rec. Doc. 11-1, p. 5.

91 Zimmerman v. City of Austin, 881 F.3d 378, 389 (5th Cir. 2018).

92 Keenan, 290 F.3d at 259-60 (though “th[is] effect on freedom may be small”).

93 Id. at 260 (finding plaintiffs sufficiently pleaded curtailment of their protected activities when they “backed

off from direct involvement in helping expose unlawful practices” in response to the defendant’s actions).

94 587 U.S. 391, 398-99 (2019).

95 Rec. Doc. 11-1, p. 4.

alerting McKinney’s government supervisors to her protected activity, even if colored by

some degree of bad motive, is not actionable to the extent “it was an action that in all

likelihood would have been taken anyway,” regardless of an improper purpose.96 In

support of this position, Defendants characterize McKinney’s speech as “a concerted

effort to have the Town of Killian dissolved,” of which the state needed to be apprised.97

But the mere assertion of a nonretaliatory motive is not an escape hatch for liability

at this stage of the proceedings. The Court need not determine the exact reason for the

Defendants’ decision to drive to Baton Rouge and meet with McKinney’s supervisor on

March 4, 2024. Rather, the Court need only find that the factual allegations in the

Complaint, and the reasonable inferences drawn therefrom, create a plausible case for a

retaliatory motive and but-for causation. Taking all well-pleaded allegations as true, the

Court concludes that McKinney has alleged a sequence of events and specific facts from

which a reasonable inference can be drawn that the Defendants (1) harbored a retaliatory

motive against McKinney’s exercise of First Amendment activities and, (2) but for that

motive, would not have undertaken the alleged adverse actions.98

Importantly, it is alleged that Defendants’ complaints at the March 2024 meeting

extended beyond McKinney’s activity on social media (as would support their stated

nonretaliatory motive regarding town dissolution) to include their dissatisfaction with her

comments at town meetings and mandamus litigation against town officials. Even so,

Defendants cite no authority (let alone local policy) that requires state officials to be

notified each time a state employee calls for dissolution of the town in which they reside.

96 Id.

97 Id.

98 Brady v. Houston Independent School Dist., 113 F.3d 1419, 1424 (5th Cir. 1997) (recognizing that

plaintiffs may rely upon “a chronology of events from which retaliation may plausibly be inferred”).

On these facts, the Court cannot conclude that McKinney’s retaliation claim fails to plead

the necessary causation between the Defendants’ retaliatory motive and her

constitutional injury. McKinney’s allegations are therefore sufficient to satisfy the third

element of her First Amendment retaliation claim against those Defendants who arranged

and attended the meeting with her supervisor on March 4, 2024.

v. Retaliatory enforcement of laws

McKinney next contends that Sharp, Fontenot, Erdey, and Milton, engaged in

retaliatory acts in violation of the First Amendment when they enforced laws against her

without probable cause, and refused to enforce those same laws against other similarly

situated citizens.99 A fair reading of McKinney’s Complaint identifies two instances of

conduct that fall within this description: (1) the July 2024 towing of her disabled boat by

Erdey,100 and (2) the December 31 bonfire incident.

The Court interprets these allegations to set forth a retaliatory enforcement claim

under the First Amendment. “The First Amendment prohibits government officials from

subjecting an individual to retaliatory actions…for speaking out.”101 While retaliation

claims based on enforcement actions often arise in the context of arrests and/or

prosecutions, the First Amendment’s application is not so limited that the towing of one’s

vehicle and extinguishing of a bonfire cannot qualify as retaliatory enforcement actions.102

Given the public-safety element inherent in such acts, the Court recognizes—as it must—

the Fifth Circuit’s directive that “the objectives of law enforcement [typically] take primacy

99 Rec. Doc. 9, ¶ 48.

100 Id. at ¶ 34.

101 Hartman v. Moore, 547 U.S. 250, 256 (2006).

102 Izen v. Catalina, 398 F.3d 363, 367 n.5 (5th Cir. 2005) (“[a]ny form of official retaliation for exercising

one’s freedom of speech, including…threatened prosecution bad faith investigation, and legal harassment

…constitutes an infringement on that freedom”).

over the citizen’s right to avoid retaliation.”103 In such circumstances, a plaintiff can still

satisfy the three-part First Amendment retaliation framework inquiry, but must also show

an absence of probable cause to establish “but for” causation.104 That said, there is a

“narrow qualification” to this rule where the plaintiff pleads objective evidence that

similarly situated individuals who did not engage in the protected activities at issue were

not subject to the complained of enforcement action, despite the existence of probable

cause to enforce the law against them.105

The Court first considers the towing of McKinney’s boat. While these allegations

are disturbing, McKinney does not plead sufficient facts from which the Court can

reasonably infer that Erdey’s conduct was substantially motivated (if at all) by McKinney’s

protected activities. Aside from his above-noted involvement in the boat’s towing, the

only other mention of Erdey in the Complaint arises in connection with a September 10,

2024 public records request “directed to Posey, Fontenot, Erdey, Milton, and any other

public official having responsive public records.”106 While the Complaint does note, in

conclusory fashion, that “Fontenot, Erdey, and Milton refused to make the [neighbor]

move their camper,”107 this fact does not prompt an inference that Erdey’s trip to

McKinney’s residence in July 2024 was made for an improper retaliatory purpose, or at

the direction of others who may have harbored such retaliatory motives. For that reason,

the facts alleged are insufficient to sustain a First Amendment retaliation claim against

any of those named Defendants on this basis.

103 Davidson v. City of Stafford, Texas, 848 F.3d 384, 391 (5th Cir. 2017).

104 See Nieves v. Bartlett, 587 U.S. 391, 404 (2019) (“[a]bsent…a showing [of no probable cause], a

retaliatory arrest claim fails”).

105 Id. at 407.

106 Rec. Doc., ¶ 24.

107 Id. at ¶34 (located on p. 12).

As to the bonfire incident, the Court finds McKinney’s allegations sufficient to

assert a colorable claim of First Amendment retaliation. Notwithstanding the fact that the

bonfire was on a property adjacent McKinney’s residence, the alleged sequence of official

conduct constitutes an enforcement action sufficient to chill the speech of a person of

ordinary firmness. Not only do the allegations show that McKinney was informed by the

fire chief that, pursuant to a directive from Sharp, she was unable to engage in an activity

that other residents of Killian could freely enjoy (and openly did so), she was shortly

thereafter subject to an arrest warrant for that very same conduct. To the extent “the

Supreme Court has often [recognized] that a realistic threat of arrest is enough to chill

First Amendment rights[,]”108 an arrest warrant certainly qualifies.

The Court also finds that McKinney sufficiently pleads that the adverse actions

were substantially motivated against her exercise of First Amendment rights. Even

assuming probable cause existed to extinguish the fire and pursue criminal charges for

McKinney’s conduct—which she disputes—the Complaint contains allegations that

“otherwise similarly situated individuals not engaged in the same sort of protected speech

had not been”109 so targeted by official action. McKinney further alleges that, as the

bonfire was being extinguished, Sharp was at an event “laughing and telling [his] great-

granddaughter that [McKinney] was going to jail for the new year,”110 which allows the

Court to reasonably infer that the bonfire-related enforcement actions were likely devoid

of a legitimate justification and, instead, inspired by Sharp’s distaste for McKinney’s

protected activities. Such an inference is likewise made plausible by the chronology of

108 Brown v. Jones Cty. Junior Coll., 463 F. Supp. 3d 742, 761 (S.D. Miss. 2020) (citing Hodgkins ex rel.

Hodgkins v. Peterson, 355 F.3d 1048, 1056 (7th Cir. 2004)).

109 Nieves, 587 U.S. at 407.

110 Rec. Doc. 9, ¶ 36.

events alleged in the Complaint and the fact that, less than a year prior, in March 2024,

Sharp allegedly unsuccessfully lobbied for McKinney’s termination from public

employment based on that same protected conduct.111

For the foregoing reasons, the motion to dismiss McKinney’s First Amendment

retaliation claim is DENIED as to Sharp, Ballard, Fontenot and Hendley. As to all other

Defendants, the motion to dismiss is GRANTED.

D. McKinney Fails to State a 42 U.S.C. § 1983 Civil Conspiracy Claim

The Court now considers McKinney’s allegation that, under 42 U.S.C. § 1983,

Sharp, Ballard, Fontenot, Drake, and Hendley, engaged in a conspiracy to chill her

speech in violation of the First Amendment to the United States Constitution and Article

1, Section 7 of the Louisiana Constitution.112

“In order to prevail on a [§] 1983 conspiracy claim, a plaintiff must establish (1) the

existence of a conspiracy involving state action and (2) a deprivation of civil rights in

furtherance of the conspiracy by a party to the conspiracy.”113 Regarding the first element:

“To establish a cause of action based on conspiracy a plaintiff must show that the

defendants agreed to commit an illegal act.”114 “Mere conclusory allegations of conspiracy

cannot, absent reference to material facts, survive a motion to dismiss.”115 “[M]ore than a

111 Brady v. Houston Indep. Sch. Dist., 113 F.3d 1419, 1424 (5th Cir. 1997) (to establish a First Amendment

retaliation claim, a plaintiff may “rely upon ‘a chronology of events from which retaliation may plausibly be

inferred’”).

112 Rec. Doc. 9, ¶¶ 49-51.

113 Pfannstiel v. City of Marion, 918 F.2d 1178, 1187 (5th Cir. 1990); see also Jabary v. City of Allen, 547

F. Appx 600, 610 (5th Cir. 2013) (“To prove a conspiracy under § 1983, a plaintiff must allege facts that

indicate (1) there was an agreement among individuals to commit a deprivation, and (2) that an actual

deprivation occurred.” (citing Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir.1994)).

114 Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982) (Rubin, J.) (citations omitted).

115 Id. (citing Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir. 1977)).

blanket of accusation is necessary to support a § 1983 claim.”116 Plaintiff must make

“specific allegation[s] of fact tending to show a prior agreement has been made.”117

In support of her conspiracy claim, McKinney alleges, upon information and belief,

that Ballard, Drake, Sharp, Hendley, and Fontenot, “entered into an agreement to harass

[McKinney] and get her fired from her jobs.”118 She further alleges that, by calling her

supervisors at one job and meeting with her supervisor at another, the Defendants took

“steps…in furtherance of their conspiratorial goal, which resulted in [McKinney’s] speech

being chilled, as she refrained from expressing her political opinions publicly

thereafter.”119 As previously noted, however, the Court finds only the act of meeting with

McKinney’s employer was sufficiently pleaded to constitute retaliation in violation of the

First Amendment. For this reason, the Court can only consider that conduct for purposes

of the conspiracy claim—thus, only Ballard, Sharp, Hendley, and Fontenot are implicated.

In light of this, and despite no party addressing the issue, it is glaring to the Court

that there can be no conspiracy, for such a finding is barred by the intra-corporate

conspiracy doctrine. It is a long-standing rule in the Fifth Circuit that a “corporation cannot

conspire with itself any more than a private individual can, and… that the acts of the agent

are the acts of the corporation.”120 These principles, applicable to § 1983 claims,121 also

extend to municipalities like the Town of Killian.122 The result: the intra-corporate

116 Id. (citations omitted).

117 See id. at 1023-24.

118 Rec. Doc. 9., ¶ 51.

119 Id.

120 Hilliard v. Ferguson, 30 F.3d 649, 653 (5th Cir. 1994) (applying the intra-corporate conspiracy doctrine

to a § 1985 conspiracy claims against a school board and its members) (internal citations omitted).

121 Burns v. Harris v. County Bail Bond Bd., 139 F.3d 513, 520 (5th Cir. 1998); Trombley v. O’Neil, 929 F.

Supp. 2d 81, 107 (N.D.N.Y. 2013) (“the intra-corporate conspiracy doctrine…applies to…42 U.S.C. [§]

1983).

122 See Swilley v. City of Houston, 457 F. Appx. 400, 404 (5th Cir. 2012) (“The City…is a single legal entity

and, as a matter of law, its employees cannot conspire among themselves.”).

conspiracy doctrine precludes plaintiffs from bringing conspiracy claims against multiple

defendants employed by the same governmental entity, for an agency and its employees

are “a single legal entity which is incapable of conspiring with itself.”123 The allegations

of McKinney’s Complaint confirm that Sharp, Ballard, Hendley, and Fontenot are all

“officers of the Town of Killian.”124 Accordingly, they are “incapable of” conspiring among

themselves.125 This is true even if, as here, the conspiracy is alleged against the town

officials in both their individual and official capacities.126

Accordingly, the Defendant’s motion to dismiss McKinney’s § 1983 conspiracy

claim is GRANTED.

E. McKinney Fails to State a Claim under the Fourteenth Amendment

Defendants argue that McKinney fails to state a claim for relief under a theory of

disparate treatment in violation of the Fourteenth Amendment. McKinney alleges that,

despite repeated reports, Sharp, Fontenot, Erdey and Milton, “failed to protect [her]

property from intrusion by adjacent property owners,” and thereby “created a situation

where the adjacent property owners felt entitled to trespass upon [McKinney’s] property

and impede [her] right of access.”127 She further alleges that, based on the facts laid out

in the Complaint, she has been subject to “an orchestrated campaign of official

harassment over more than [two] years”—which she labels as “Category Three

discrimination”—and thereby “is a ‘class of one’ under the law.”128

123 Thornton v. Merchant, 526 Fed. Appx. 385, 388 (5th Cir. 2013) (per curiam) (citing Benningfield v. City

of Houston, 157 F.3d 369, 378 (5th Cir. 1998)).

124 Rec. Doc. 9, ¶ 45.

125 Thornton, 526 Fed. Appx. at 388.

126 See, e.g., Collins v. Bauer, No. 311-887, 2012 WL 443010, at *8 (N.D. Tex. Jan. 23, 2012) (citing

Reynosa v. Wood, 134 F.3d 369, 369 (5th Cir. 1997)).

127 Rec. Doc. 9, ¶ 53.

128 Id.

Despite invoking this classification, McKinney’s Complaint is vague as to what type

of equal protection claim she asserts. Understandably, Defendants’ do not address

McKinney’s “class of one” theory; instead, they direct the Court’s attention to several

Supreme Court cases that stand for the proposition that a failure to strictly enforce the

law against wrongdoers does not, by itself, constitute a violation of the Due Process

Clause.129 Indeed, the Due Process Clause confers “no affirmative right to governmental

aid, even where such aid may be necessary to secure…property interests….”130 But a

fair reading of the Complaint suggests McKinney’s claims are better analyzed under

Equal Protection principles which proscribe the disparate treatment of similarly situated

individuals where “there is no rational basis for the difference in treatment.”131

Applied here, the Court finds that McKinney’s class-of-one theory must fail. If “the

challenged government action does not appear to classify or distinguish between two or

more relevant persons or groups, then the action—even if irrational—does not deny them

equal protection of the laws.”132 McKinney’s Complaint does not allege that town officials

only pursued trespass and code enforcement requests when made by other residents.

Nor does McKinney allege that she was subject to a trespass-related sanction to which

other residents were not similarly made subject. Accordingly, McKinney has not stated a

claim for violation of the Equal Protection Clause based on the conduct of town officials

related to trespass enforcement.

129 Rec. Doc. 11-1, p.6 (citing DeShaney v. Winnebago Cty. Dep’t of Social Servs., 489 U.S. 189, 195-96

(1989)).

130 DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 197 (1989).

131 Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Whiting v. Univ. of S. Miss., 451 F.3d 339,

348 (5th Cir. 2006).

132 Johnson v. Rodriguez, 110 F.3d 299, 306 (5th Cir. 1997)

To the extent McKinney’s alleged “orchestrated campaign of official harassment”

can be read to include police actions alleged elsewhere in the Complaint—such as the

towing of her boat and the December 31 bonfire—that conduct is alleged to have been

done “in retaliation for [McKinney’s] protected speech.”133 It is clear, however, that class-

of-one claims under the Equal Protection Clause are properly premised on “differential

treatment…[and] not…the infringement of a fundamental right.”134 To the extent that the

First Amendment right to free speech is “fundamental” for purposes of the Fourteenth

Amendment,135 a class-of-one theory under the Equal Protection Clause is not the proper

mechanism by which it is to be enforced.136

For that reason, the Defendants’ motion to dismiss McKinney’s § 1983 claim

arising from disparate treatment in violation of the Fourteenth Amendment is GRANTED.

F. McKinney Fails to State a Claim for Monell Liability

McKinney also asserts Monell liability against the Town of Killian based on her

First Amendment retaliation claim.

Monell liability consists of three elements: (1) a policymaker; (2) an official policy;

and (3) a violation of constitutional rights whose moving force is the policy or custom.137

The “violation of constitutional rights” must thereby be “directly attributable to the

municipality through some sort of official action or imprimatur; isolated unconstitutional

133 Rec. Doc. 9, ¶ 48 (located on p. 16-17).

134 Woods v. Collier, 836 F.3d 534, 539 (5th Cir. 2016); Poupart v. Department of Public Safety, No. 24-

931, 2025 WL 1749985 at *3 (M.D. La. May 28, 2025).

135 Burson v. Freeman, 504 U.S. 191, 196 (1992) (quoting Thornhill v. Alabama, 310 U.S. 88, 95 (1940)

(“The freedom of speech…which [is] secured by the First Amendment…[is] among the fundamental

personal rights secured to all persons by the Fourteenth Amendment against abridgement by a State”)).

136 See Guardian News, Inc. v. Idoni, No. 08-10064, 2011 WL 13383231 at *7 (S.D.N.Y. Jun. 20, 2011) (“a

claim that one has been selectively mistreated on an impermissible basis, such as the exercise of one's

First Amendment rights, is thus not a class-of-one equal protection claim, but rather a selective treatment

claim”)).

137 Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001).

actions by municipal employees will almost never trigger liability.”138 In other words, the

municipality must be “actually responsible”139 for the constitutional violation at issue and

may not be held vicariously liable for the unconstitutional acts of its employees.140

McKinney attempts to satisfy this standard by alleging Sharp—as the ultimate

policymaker for Killian—“has a custom, pattern, practice, and/or procedure of violating

people’s rights,” as illustrated by, among other things, “attempting to get [McKinney] fired

for her protected speech.”141 Relying on Malone v. City of Fort Worth,142 Defendants

counter that McKinney’s allegations fail to show a “pattern of similar violations of federal

rights,” as is generally required when a plaintiff seeks to attach Monell liability on the basis

of a policy/custom that is deliberately indifferent to the known or obvious consequence

that it will result in the violation of federal rights.143 They further contend that even under

the Supreme Court’s “single decision” exception from Pembaur v. Cincinnati,144 alerting

McKinney’s state supervisors that their employee was calling for Killian’s dissolution was

a discretionary act that “without more” does not give rise to municipal liability.145

With respect to Monell’s first element, the Court finds McKinney has failed to plead

sufficient facts to show Sharp is a policymaker with final policymaking authority

138 Id.

139 Burge v. Parish of St. Tammany, 187 F.3d 452, 471 (5th Cir. 1999).

140 City of Canton v. Harris, 489 U.S. 378, 385 (1989).

141 Rec. Doc. 9, ¶ 57. McKinney also points to Sharp’s “blatant disregard for Louisiana’s Public Records

and Open Meetings laws” and “ordering and/or ratifying his police officers’ refusal to implement the laws

equally towards all citizens.” Id. The Court finds these statements “too generic and conclusory to be entitled

to a presumption of truthfulness.” Badie v. City of New Orleans, No. 11-2991, 2013 WL 5175648 (E.D. La.

Sep. 12, 2013) (dismissing Monell claims for this reason). Even so, the Complaint does not refer to the

Public Records or Open Meetings law violations as the basis for any of the federal causes of action that

could serve as a predicate for purposes of Monell liability. Nor does McKinney identify a single instance

where Sharp instructed and/or ratified any police officer’s conduct, let alone that which applies the law

unequally.

142 297 F. Supp. 3d 645 (N.D. Tex. 2018).

143 Rec. Doc. 11-1., pp. 8-9.

144 475 U.S. 469 (1986).

145 Rec. Doc. 11-1, pp. 10-11.

“concerning the action alleged to have caused the particular constitutional violation.”146

The Complaint cites no state or local law designating Sharp as the official responsible for

notifying state officials any time a state-employee discusses dissolving their town’s

government on social media.147 Instead she alleges, in conclusory fashion and without

factual underpinning, that he is the “ultimate policymaker for the town.”148 A bare legal

conclusion, like this, cannot survive a motion to dismiss.

Even so, the allegations as pleaded suggest Sharp, along with several other town

official Defendants, decided to arrange and attend a meeting with McKinney’s supervisors

for a constitutionally improper purpose. Importantly, and to the extent the Defendants’

decision can be considered a policy function, the ability to make a decision does not

equate to the ability to make a final policy.149 The Fifth Circuit has long distinguished

between final decision-making authority and final policymaking authority.150 While it is

clear that Sharp exercised discretion in attending the March 4 meeting, McKinney does

not plausibly allege that he had final policymaking authority for the Town in doing so.

Even if that were the case, the factual allegations in the Complaint do not satisfy

the second element of Monell requiring an official policy. The Fifth Circuit has identified

three ways that this element can be satisfied: (1) showing a written policy;151 (2) showing

a widespread practice that is so common and well-settled as to constitute a custom that

fairly represents municipal policy;152 and, in rare circumstances, (3) showing a single

146 McMillian v. Monroe Cnty., Ala., 520 U.S. 781, 785 (1997) (quoting Jett v. Dallas Indep. Sch. Dist., 491

U.S. 701, 737 (1989)).

147 Burge v. Parish of St. Tammany, 187 F.3d 452, 468 (5th Cir. 1999).

148 Rec. Doc. 9, ¶ 55.

149 Bolton v. City of Dallas, 541 F.3d 545, 549 (5th Cir. 2008) (per curiam).

150 Id.

151 Webb v. Town of Saint Joseph, 925 F.3d 209, 214-15 (5th Cir. 2019).

152 Id. at 215.

decision where the official or entity possessing final policymaking authority for an action

performs the specific act that forms the basis of the § 1983 claims.153 In the present case,

it is clear that only the third option is possible.154

A “single unconstitutional action…may be sufficient in rare circumstances to

impose municipal liability under Monell.”155 This requires “a government decision-maker

possessing final authority with respect to an area of government responsibility [to] order[]

or directly participate[] in the action that causes the alleged violation of the plaintiff’s

rights.”156 To be sure, a single instance of First Amendment retaliation is not categorically

excepted from this rule.157 Nevertheless, McKinney has failed to plausibly allege that

Sharp has final policymaking authority for the conduct at issue (or the area of governance

it implicates). Even then, the Fifth Circuit has only applied single violation Monell liability

in “extreme circumstances.”158 Indeed, that court “has considered single violation liability

several times, and, with only one exception in some (40) years since Monell, has

consistently rejected application of the single incident exception.”159 Instructively, the sole

exception, Brown v. Bryan County, Oklahoma,160 involved a sheriff’s failure to train a

deputy known to have an “exuberant and reckless background” on and off the job, such

that the sheriff was on clear notice that placing him on duty with “no training” and “no

153 Id.

154 McKinney ostensibly pleads Monell liability under both ‘custom’ and ‘single decision’ theories.

155 Howell v. Town of Ball, 827 F.3d 515, 527 (5th Cir. 2016) (emphasis added).

156 Andrade v. City of San Antonio, 143 F. Supp. 2d 699, 724 (W.D. Tex. 2001) (citing Pembaur v. City of

Cincinnati, 475 U.S. 469, 481 (1986)).

157 Lott v. Forrest County, Miss., No. 214-131, 2015 WL 7015315, at *10 (S.D. Miss. Nov. 10, 2025).

158 Blanchard-Daigle v. Geers, 802 Fed. Appx. 113, 117 (5th Cir. 2020); Cozzo v. Tangipahoa Parish

Council-President Government, 279 F.3d 273, 288 (5th Cir. 2002) (“[T]his court has often rejected

application of the single incident exception.”).

159 Khansari v. City of Houston, No. 13-2722, 2015 WL 6550832, at *16 (S.D. Tex. Oct. 28, 2015) (quoting

Thompson v. Connick, 578 F.3d 293, 299 (5th Cir. 2009), reversed on other grounds, Connick v. Thompson,

563 U.S. 51 (2011)).

160 219 F.3d 450 (5th Cir. 2000).

supervision” could lead to an excessive force incident.161 Accordingly, the Court cannot

conclude that Sharp’s conduct, although concerning, fits within the narrow circumstances

under which courts in the Fifth Circuit have applied single-incident municipal liability.162

Accordingly, Killian’s motion to dismiss McKinney’s Monell claim is GRANTED.

G. The Court declines to exercise supplemental jurisdiction over two of

McKinney’s three state law claims

McKinney also pleads several claims that arise under the Louisiana Constitution

and state law. Specifically, she alleges a conspiracy to chill plaintiff’s speech in violation

of Article I, Section 7 of the Louisiana Constitution,163 violations of the Louisiana Public

Records and Open Meetings Law,164 and a state law tort claim for the intentional (or

negligent) infliction of emotional distress.165 To determine whether the Court may

exercise supplemental jurisdiction over any of these claims, under 28 U.S.C. § 1367, it

must first be shown that “the supplement claims are so related to the original claims” for

which the Court has original jurisdiction under § 1331, “that they form part of the same

case or controversy[;] in other words, that they derive from a common nucleus of operative

fact.”166 Whether it is appropriate to exercise supplemental jurisdiction requires a fact

161 Id. at 462-63.

162 Courts generally require extreme factual situations such that “[s]ingle violations create liability in only

the most egregious cases.” Thompson v. McGehee, 761 F. Supp. 3d 937, 945 (N.D. Tex. 2025); Waller v.

City of Fort Worth, Tex., 515 F. Supp. 3d 577, 589 (N.D. Tex. 2021) (finding the actions at issue were

“comparable to shooting a fleeing suspect in the back, and… [therefore] not extreme enough”).

163 Rec. Doc. 9, p. 17.

164 Rec. Doc. 9, pp. 19-20.

165 Rec. Doc. 9, ¶ 49.

166 Mendoza v. Murphy, 532 F.3d 342, 346 (5th Cir. 2008).

specific case-by-case inquiry,167 in which the relatedness of the various claims in time,

space, origin, or motivation should be considered.168

As to McKinney’s claim under Louisiana’s Public Records and Open Meetings

laws, the Court concludes that the conduct alleged is not “so related” to her federal claims

that they “form part of the same case or controversy.”169 A fair reading of the pleaded

facts reveals that none of McKinney’s federal claims look to impose liability for the town

officials’ conduct during town meetings or in responding to public records requests.170

Instead, it is the protected activities McKinney engaged in because of her discontent with

the Defendants’ handling of these matters that is alleged to have given rise to the

retaliatory acts, conspiracy, and disparate treatment in violation of federal law. The fact

that a plaintiff alleges First Amendment retaliation in response to protected speech does

not, by itself, confer federal jurisdiction over state law claims arising from the controversy

that initially prompted the plaintiff’s speech. Because McKinney’s claims under federal

law and Louisiana’s Public Records and Open Meetings laws derive from different origins,

the Court declines to exercise supplemental jurisdiction over the latter.171

167 Whatley v. Young Women’s Christian Ass’n of Northwest Louisiana, Inc., No. 06-423, 2006 WL 1453043,

at *3 (W.D. La. May 18, 2006).

168 Fed. Ins. Co. v. C.D. Henderson Inc., No. 07-982, 2008 WL 11334958, at *3 (W.D. Tex. Oct. 31, 2008)

(quotation marks and citation omitted).

169 28 U.S.C. § 1367(a).

170 The allegations in McKinney’s Complaint present only two candidates to support her Louisiana Open

Meetings law violation. That is, on February 14, 2024, the Defendants held a public meeting but had only

posted the Notice therefor on February 13—which was Mardi Gras Day, a state holiday. Rec. Doc. 9, ¶ 30.

McKinney also alleges that when she attempted to participate and speak on public issues, she was

“chastised, challenged, and denigrated by Mayor Sharp and Henry.” Id., ¶ 31. Both instances are distinct

from the conduct McKinney sets forth in support federal law claims. Even if the Court were to couch the

latter allegation into McKinney’s retaliation or disparate treatment causes of action, the attempt is defeated

by McKinney’s assertion that “Sharp instructs and allows his appointed police chief and other police officers

to intimidate [McKinney] and other citizens in attendance.” Id., ¶ 33. On that showing, the Court would be

unable to find that McKinney was singled out for her protected speech or some other impermissible rationale

171 Mount v. Louisiana State University Health Sciences Ctr., No. 25-1377, 2025 WL 3684247, at * 5 (E.D.

La. Dec. 19, 2025) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966) (recognizing

that “each separate claim ‘must derive from a common nucleus of operative fact[s]’ and be such that a

plaintiff ‘would ordinarily be expected to try them in one judicial proceeding’”) (emphasis added)).

The Court also declines to exercise its supplemental jurisdiction over McKinney’s

claim entitled “Conspiracy to Chill Plaintiff’s Speech in Violation of… Article 1, Section 7

of the Louisiana Constitution.”172 The determination of whether to exercise jurisdiction

over a state law claim must be made on a case-by-case basis, keeping in mind and

balancing such considerations as judicial economy, convenience, fairness, and comity

(the Cohill factors).173 The final decision, however, is made in the court’s discretion.174

Resolving McKinney’s conspiracy claim under the Louisiana Constitution would

require this Court to resolve a complex issue of state law—and potentially an issue of first

impression. The parties do not cite, and the Court did not locate, any authority on whether

conspiracy claims are actionable in this context. On this basis, the Court declines

supplemental jurisdiction under 28 U.S.C. § 1367 (C).175 The Cohill factors, too, weigh in

favor of declining jurisdiction, particularly those of judicial comity and economy. As courts

of limited jurisdiction, federal courts are “not as well equipped for determinations of state

law as are state courts.”176 The Court is of the opinion that this principle applies with

added force when, as here, the state law claim would involve the interpretation and

possible expansion of rights under a State’s own constitution.177 The Court’s decision is

further supported by its denial of McKinney’s federal conspiracy claim.178

172 Rec. Doc. 9, p. 17.

173 Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349-50 (1988).

174 Wilson v. Tregre, 787 F.3d 322, 326 (5th Cir. 2015).

175 Sevin v. Parish of Jefferson, 632 F. Supp. 2d 586, 593-94 (E.D. La. 2008) (declining exercise of

supplemental jurisdiction where relevant constitutional provision “had been interpreted only once by the

Louisiana Supreme Court…and its meaning subject of confusion and debate”).

176 Enochs v. Lampasas County, 641 F.3d 155, 160 (5th Cir. 2011).

177 Parker & Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580, 590 n.12 (5th Cir. 1992) (“comity and

federalism are sometimes better served” by avoiding “unnecessary determinations of state law”).

178 Alternatively, McKinney’s Complaint lacks factual support and a legal basis to sustain her state

constitutional conspiracy claim. McKinney states, in conclusory fashion, “[t]he Louisiana Constitution…also

guarantees [her] the right to freedom of expression.” Rec. Doc. 9, ¶ 48.

Accordingly, McKinney’s claims arising under the Louisiana Constitution and

Louisiana’s Public Records and Open Meetings laws are REMANDED.179

The Court lastly considers McKinney’s allegation that the March 2024 meeting with

her employer supports a claim for the intentional (or negligent) infliction of emotional

distress. Because this claim inherently derives from “a common nucleus of operative fact”

with McKinney’s federal constitutional claims, namely for First Amendment retaliation, the

Court will entertain supplemental jurisdiction under 28 U.S.C. § 1367.

H. McKinney Fails to State a Claim for Intentional and/or Negligent Infliction of

Emotional Distress

In White v. Monsanto, the Louisiana Supreme Court explained that for a claim of

intentional infliction of emotional distress to be actionable, a plaintiff must establish “(1)

that the conduct of the defendant was extreme and outrageous; (2) that the emotional

distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict

severe emotional distress or knew that [it] would be certain or substantially certain to

result from his conduct.”180 The defendant’s conduct “must be so outrageous in character,

and so extreme in degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious and utterly intolerable in a civilized community.”181 McKinney’s

Complaint identifies only the March 2024 meeting as “outrageous behavior amounting to

the intentional and/or negligent infliction of emotion distress.”182 Defendants, on the other

hand, contend this falls “far below” the standard necessary to sustain the cause of action.

179 Enochs, 641 F.3d at 160; Hensgens v. Deere & Co., 833 F.2d 1179, 1181 (5th Cir. 1987)

(“Remand…instead of dismissal, is the appropriate action [for] lack of subject matter jurisdiction.”).

180 585 So.2d 1205, 1209 (La. 1991).

181 Glenn v. Boy Scouts of America, 977 F. Supp. 786, 789 (W.D. La. 1997).

182 Rec. Doc. 9, ¶ 49.

The Court need not resolve this dispute concerning the first element. Even

drawing all inferences in McKinney’s favor, the facts alleged are insufficient for two

reasons. First, the Court cannot find any allegation that, by organizing the March 2024

meeting, the involved Defendants “desired to inflict severe emotional distress or knew

that severe emotional distress would be certain or substantially certain to result from their

conduct.” Second, and applicable to both the intentional and negligent infliction theories,

McKinney does not present facts showing that her emotional distress was severe. “It is

not sufficient to assert severe emotional distress in a conclusory fashion without any facts

supporting that contention.”183 Moreover, “genuine humiliation, anxiety, confusion, upset,

worry and the like are typically insufficient.”184 Yet, this is precisely what McKinney

asserts.185 Importantly, McKinney does not plead any facts, such as visits to health care

providers as a result of extreme stress or physical symptoms resulting therefrom, that

would allow the Court to infer she suffered actual severe emotional distress.186

The motion to dismiss McKinney’s State law emotional distress claims is therefore

GRANTED.

I. Punitive Damages

Defendants next argue that “with her § 1983 claims falling for failure to state a

claim upon which relief can be granted, [McKinney’s] punitive damages claim also

falls.”187 However, because the Court has determined McKinney’s § 1983 claim for First

183 Duhon v. Healthcare Professionals’ Foundation of Louisiana, No. 20-2022, 2022 WL 298844, at *3 (E.D.

La. Feb. 1, 2022).

184 Gressett v. Southwest Airlines Company, 216 F.Supp.3d 734, 749 (E.D. La. 2016) (citing Nicholas v.

Allstate Ins. Co., 765 So.2d 1017, 1030 (La. 2000)).

185 Rec. Doc. 9, ¶ 49 (“extreme anxiety, embarrassment, and humiliation”).

186 Wilson v. Ochsner Clinic Foundation, No. 19-12314, 2019 WL 5693109, at *7 (E.D. La. Nov. 4, 2019)

(“[T]he second element…requires Plaintiff to prove symptoms of emotional distress like neuroses,

psychoses, chronic depression, phobia, and shock”).

187 Rec. Doc. 11-1, p. 10.

Amendment retaliation survives against Sharp, Ballard, Fontenot, and Hendley, punitive

damages remain available. While McKinney cannot recover punitive damages from

municipal officers in their official capacities, punitive damages are available against these

Defendants in their individual capacities.188

Therefore, the motion to dismiss McKinney’s punitive damages claims is DENIED.

J. Attorney’s Fees are Unavailable

Defendants move to dismiss McKinney’s claim for attorney’s fees because she is

appearing “in proper person.”189 Indeed, a pro se litigant is not entitled to attorney’s fees

under 42 U.S.C. § 1983, even if they are an attorney.190 McKinney concedes as much.191

She notes, without citation to any authority, however, that “the same litigant may be

entitled to attorney’s fees under Louisiana’s Public Records Law and/or Louisiana’s Open

Meetings Law.”192 Because the Court has declined to exercise supplemental jurisdiction

over these claims, the Court need not resolve the issue of attorney’s fees.

The motion to dismiss McKinney’s claim for attorney’s fees is GRANTED.

III. CONCLUSION

For the reasons stated above, the Defendants’ Motion to Dismiss193 under Rule

12(b)(6) is GRANTED in part and the following claims are dismissed WITHOUT

PREJUDICE: Count 1 (First Amendment Retaliation) with respect to all Defendants

except Sharp, Ballard, Hendley, and Fontenot; Count 3 (Equal Protection); the state law

claim for intentional/negligent infliction of emotional distress; and McKinney’s request for

188 Broussard v. Lafayette Consolidated Government, 45 F. Supp. 3d 553, 579 (W.D. La. 2014) (“[p]unitive

damages are…recoverable against municipal employees who are sued in their individual capacities”).

189 Rec. Doc. 11-1, p. 10.

190 Kay v. Ehrler, 499 U.S. 432, 435 (1991).

191 Rec. Doc. 12, p. 22.

192 Id.

193 Rec. Doc. 11.

attorney’s fees. The following claims are dismissed WITH PREJUDICE: Count 2

(Conspiracy to Violate First Amendment Rights) and Count 4 (Monell Liability). The

Motion to Dismiss is DENIED as to Count 1 (First Amendment Retaliation) with respect

to Defendants Sharp, Ballard, Hendley, and Fontenot, and is further DENIED as to

McKinney’s claim for punitive damages against these named Defendants. The following

claims are REMANDED: Count 2 (to the extent it involves Conspiracy to Violate Freedom

of Expression in Violation of the Louisiana Constitution) and Count 5 (violations of

Louisiana’s Public Records and Open Meetings laws). Plaintiff is GRANTED leave of

court to amend her Complaint to cure the deficiencies set forth herein within 21 days of

this Ruling.194

IT IS SO ORDERED.

Baton Rouge, Louisiana, this 30th day of March, 2026.

S

_____________________________________

CHIEF JUDGE SHELLY D. DICK

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

194 If Plaintiff wishes to amend more broadly, she must file a motion under the applicable Federal Rules of

Civil Procedure.